P L D 1993 Federal Shariat Court 38 (PLP)

FIDA MUHAMMAD KHAN, J.‑‑‑This Shariat Petition No.54/1 of 1992 filed by Mehroze son of Dolazay and Maskeen son of Battay and sixty‑two other persons named in Annex. A, under the provisions of Article 203‑D of the Constitution of Islamic Republic of Pakistan, 1973, as amended, challenges paragraph No.650 of "Rewajnama Swat" (hereinafter referred to as the said para.) and all endorsements/entries made in the documents thereunder by the Revenue Department, Swat District, and prays to declare them as repugnant to the Injunctions of Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h).

2. The impugned paragraph as mentioned in the said Rewajnama compiled by one Ghulam Habib Khan, Superintendent, Deputy Commissioner's Office, Saidu Sharif, Swat reads as under:‑‑

3. In support of their contention, the petitioners have relied on a number of verses from the Holy Qur'an and one Hadith from the Sunnah of the Holy Prophet (p.b.u.h), which are as follows: 1. "We sent aforetime Our apostles with Clear Sign; And sent down with them The Book and the Balance (Of Right and Wrong), that men May stand forth in Justice; And We sent down iron, In which is (material for) Mighty war, as well as Many benefits for mankind, That Allah may test who It is that will help Unseen, Him and His apostles; For Allah is Full of Strength, Exalted in Might (And able to enforce His Will). [57 : 25]

2. O ye who believe! Stand out firmly For justice, as witnesses To Allah, even as against Yourselves, Or your parents, Or your kin, and whether It be (against) rich or poor; For Allah can best protect both, Follow not the lusts (Of you hearts), lest ye Swerve and if ye Distort (justice) or decline To do Justice, verily Allah is well‑acquainted With all that ye do". [4 : 135] 3. "O ye who believe! Stand out firmly For Allah, as witnesses To fair dealing, and let not The hatred of others To you make you swerve To wrong and depart from Justice. Be just: that is Next to Piety; and fear Allah, For Allah is well‑acquainted With all that ye do [5 : 9] 4. "And do not eat up Your property among yourselves For vanities, nor fuse it As bait for the Judges, With intent that ye may Eat up wrongfully and knowingly A little of (other) people's property" [2 : 188] 5. "Allah doth command you To render back your Trusts To those to whom they are due: And when ye judge Between man and man That ye judge with justice; Verily how excellent Is the teaching which He giveth you! For Allah is He who heareth And seeth all things." [4 : 58]. HADITH: "Whosoever cultivates waste lands not belonging to others obtains a propriety in them."

4. We heard the learned counsel for the petitioner on 24th May, 1993 and finding no substance in the petition dismissed it in limine. The reasons for its dismissal are summed up in the subsequent paras.

5. The main grievance of the petitioner is that by the said para. Gujar tribe has been treated discriminately, with prejudice and mala fides and has been deprived of its legitimate rights of ownership. After thorough consideration of the submissions made by the learned counsel in this behalf and careful perusal of all the material brought by the learned counsel on record however, we found that the petition is without force. The verses quoted by him are of a general nature. It is clearly evident from the bare reading that first three verses, as mentioned above, pertain to the fair administration of justice and its dispensation without any fear or favour or any consideration of any kith and kin. The fourth verse lays a restriction on the people to avoid eating up properties belonging to others in illegal and illegitimate manner. The fifth verse relates to the restoration of trusts (and all rights) to their rightful owners in accordance with the principles of justice. In our view the said impugned paragraph, though contested by the petitioners, is in accordance with the dictates of Islamic Injunctions. Read carefully, it does not in any way deny the right of ownership of property to the Gujar tribe. It apparently confirms their right of ownership but keeping in view the fact that the said tribe was owner of no personal property or "Sarai" in the Swat area makes their claims as such subject to the production of a proof in the form of either any judicial document or evidence of a considerable number (i.e. 20) of the local respectables. The spirit of this para. seems to be quite in consonance with the verses referred to above at Serial Nos. 4 and 5 which require the avoidance of illegitimate eating up of properties belonging to others and restoration of the same to their rightful owners in accordance with the principles of justice. It will be appreciated that determination of rightful owner from among several claimants of the same property is only possible when it is subjected to the production of a convincing, reliable and credible proof.

6. Contention of the learned counsel that the said tribe is an old resident of the area and has throughout remained agriculturist by profession is an issue of facts and this Court, in the light of its particularly defined jurisdictions, has no power to decide the same. Similarly the contention about the right of ownership through cultivation of waste land, as authorised by the Holy Prophet (p.b.u.h) though not absolute but subject to certain conditions (See Hedaya,) which inter alia includes prior permission of the ruler (i.e. Government) for the said purpose and previously free un-owned/unclaimed position of the said land, is again a question of facts with which in the circumstances of this case, this Court has no concern. The factual position may be contested at the appropriate forum, if so advised.

7. In this view of the matter we find that the petition is misconceived and being without merit is accordingly in limine. A.A./817/FSC Petition dismissed.